202. Section 22 provides that public bodies may
exempt from publication information which they intend to publish
at a future date, whether or not determined, if "the information
was already held with a view to such publication at the time when
the request for information was made" and "it is reasonable
in all the circumstances that the information should be withheld
from disclosure until the date referred to [...]"[355]
This time scale is not defined. The public body is not required
to confirm or deny the existence of any information if that would
amount to disclosure of the information.[356]

Problems with pre-publication
under the 2000 Act

203. We heard from universities that the pre-publication
exemption does not sufficiently protect their research work. Universities
UK told us: "research is currently subject to the FOIA, and
early release of research findings and data can have potentially
serious implications for the quality and reputation of UK research,
universities' competitive position nationally and internationally,
and relationships with commercial partners."[357]
The 1994 Group agreed:

It is a necessary first principle that research is
conducted to the highest standards. It is this principle, embodied
by the peer review system, which has contributed to the UK's international
excellence in research. Requirements for research data and information
to be made publically available must be in harmony with this principle,
and cannot be allowed to jeopardise the viability of the research
conducted in the UK.[358]

The Russell Group said it "believes that data
collected in the pursuit of universities' research missions should
enjoy a partial protection which would allow universities to withhold
publication untiland only untilthe results of the
research have been published in a peer reviewed journal or equivalent
recognised outlet."[359]

204. Dr Rodney Eastwood, Registrar of Imperial
College London who appeared before us on behalf of the Russell
Group, said the current pre-publication exemption:

[...] does not work for research, which is a complex
activity that involves a lot of people, a lot of data and information
and many inputs. The university will clearly publish the researchthe
whole point of a university is to publish its research and to
make it availablebut only after all that has been done
and it has been peer-reviewed. Publishing bits of it prematurely
runs the big risk of the recipient, the public, drawing the wrong
conclusions.[360]

205. Professor Ian Diamond emphasised the length
of time research may take:

[...] research follows a course, and one's ideas
about the final results can change over time as one does the analysis
and one looks at different variables in different ways and with
different experiments. Some projects can take years, and saying
that, if you have some data, they must therefore be made public
and your conclusions must be ready in six months does not allow
for the proper conduct of research and could lead, in my opinion,
to poor results being propagated.[361]

Professor Diamond highlighted social research relying
on longitudinal data as an area where information may be gathered
over many years,[362]
or even decades.[363]
Universities UK told us that there was no case law establishing
how far in the future a publication date may be for the purposes
of section 22:

However, when this issue was raised in a workshop
hosted by the Research Information Network, representatives of
the ICO said timescales of months or years might not be considered
favourably. This makes it appear less likely that the exemption
could be effectively used where the period was (i) likely to be
several years in the future, and (ii) where the precise point
of publication could not yet be determined.[364]

A further problem with releasing longitudinal data
is that the time taken to 'clean' it means incomplete or under-analysed
data may be published.[365]

206. Professor Diamond told us the issue was
not one of intellectual property: "Under the Economic and
Social Research Council, all data collected using public fundscertainly
in the social scienceshave to be lodged at the data archive,
where the information is available for re-analysis by bona fide
researchers from anywhere in the world. That kind of open access
exists at the moment, so it is not about IP. It is simply about
the development of research and premature findings being available."[366]

207. Witnesses also expressed concerns that the
risk of publication they perceived coming from the Act put the
domestic university sector at a disadvantage when competing for
research work. The University of Oxford said it had encountered
the following problems:

Companies worry about the effect that the disclosure
of information about a project will have on their business or
their ability to exploit intellectual property rights. To try
to assuage these concerns, the University has to engage in lengthy
and complex negotiations with commercial partners over the treatment
of FOIA in research contracts. Recent examples include a large
multinational that refused to sign a contract for a studentship
worth £24,000 a year; a major UK company that required the
University to use its best endeavours to ensure any disclosed
information was treated as confidential and to co-operate with
it in any action it took to resist or narrow disclosure; and a
further multinational that asked for a clause that would allow
it to sue the University if it disagreed with its response to
a request under the FOIA.[367]

208. Professor Diamond told us he did not think
there was an "enormous" amount of evidence of funding
going to other countries because of the fear of disclosure but
"the Act is still in its infancy" and: "We are
in immense global competition to undertake research, and it is
the top research that is absolutely essential given the competitive
nature of the UK over the next few years. We need to ensure that
we are able to undertake research absolutely properly, and anything
that had that impact should be thought about very carefully."[368]
Universities UK observed that proving a negative, that funding
was not awarded to domestic universities, was difficult:

[...] evidence of commercial partners being put off
working with UK institutions is largely anecdotal. However, in
a case involving the Environmental Information Regulations (EIR)
recently settled by the Information Commissioner for drafts of
a published paper, the University of East Anglia highlighted that:

In another matter, we recently received exactly such
representations from the IPCC TSU [Intergovernmental Panel on
Climate Change Technical Support Unit] based in Geneva, Switzerland
in which they explicitly noted that release of such material would
"[...] force us to reconsider our working arrangements with
those experts who have been selected for an active role in WG1
AR5 [Working Group One, Fifth Assessment Report] from your institution
and others within the United Kingdom."[369]

The pre-publication exemption
in Scotland

209. Section 27 of the Freedom of Information
(Scotland) Act 2002 provides an exemption for information for
future publication. Section 27(1) is stricter than the similar
provision in section 22 of the 2000 Act in that it requires the
publication date be no more than 12 weeks after the date of the
request. Section 27(2), however, provides an exemption for ongoing
research: "Information obtained in the course of, or derived
from, a programme of research is exempt information if:

(a)the programme is continuing with a view to a report
of the research (whether or not including a statement of that
information) being published by

(i)a Scottish public authority; or

(ii)any other person; and

(b)disclosure of the information before the date
of publication would, or would be likely to, prejudice substantially

(i)the programme;

(ii)the interests of any individual participating
in the programme;

(iii)the interests of the authority which holds the
information; or

(iv)the interests of the authority mentioned in sub-paragraph
(i) of paragraph (a) (if it is a different authority from that
which holds the information).[370]

210. The Russell Group told us that "Universities
in Scotland have confirmed that the research exemption has been
used effectively."[371]
The University of Salford told us that the Scottish approach would
bring "clarity" to the pre-publication exemption.[372]
The University of Bath said it would "strongly support"
an amendment to the Act which would bring the publication exemption
in line with the position in Scotland.[373]
The University of Oxford emphasised that such an exemption applies
to pre-publication material only: "Once the results of a
study have been published, we recognise there may be a public
interest in the disclosure of the underlying data."[374]
It was noted in the House of Lords that similar exemptions exist
in USA and Irish legislation.[375]
The University of Surrey went further and called for a blanket
exemption without a prejudice test: "An extension to section
22 which states that all research data should be considered as
being for future publication would help to resolve this issue."[376]

211. However, the University of Stirling recently
had difficulties rejecting a request from Philip Morris, the tobacco
company, for data on underage smokers collected in a study sponsored
by Cancer Research. The University was concerned that the data
would be used to market tobacco to young people, which could also
have the effect of deterring sponsors. The pre-publication exemption
did not apply because the University was not intending to publish
that dataset. The request was finally refused on the grounds of
the cost of compliance.[377]

(a)an applicant makes a request for information to
a public authority in respect of information that is, or forms
part of, a dataset held by the public authority, and

(b)on making the request for information, the applicant
expresses a preference for communication by means of the provision
to the applicant of a copy of the information in electronic form,

the public authority must, so far as reasonably practicable,
provide the information to the applicant in an electronic form
which is capable of re-use.

213. Amending section 22 in line with the Scottish
exemption on pre-publication was discussed by the House of Lords
Grand Committee during its deliberation on section 102 of the
2012 Act. Lord Henley told the Committee: "As a coalition
Government, we are committed to greater transparency. I want to
make it clear that we will not introduce exemptions into the Freedom
of Information Act unless we can have that clearly demonstrated."[378]
Appearing before us, Lord McNally said:

It is quite legitimate of the universities and other
research institutes to want to protect intellectual property,
and I very strongly support that, but some of the lobbying that
I have received paints a more lurid picture than when I am told
what the Act already protects.[379]

We note that it was no part of the original campaign
for freedom of information to seek the premature disclosure of
university research.

214. We recommend section 22
of the Act should be amended to give research carried out in England
and Wales the same protection as in Scotland. While the extension
of section 22 will not solve all the difficulties experienced
by the universities in this area, we believe it is required to
ensure parity with other similar jurisdictions, as well as to
protect ongoing research, and therefore constitutes a proportionate
response to their concerns. Whether this solution is sufficient
and works satisfactorily should be reviewed at a reasonable point
after its introduction. We
address concerns over commercial competitiveness under section
43 below.

215. A number of universities, including Manchester,
Essex and Durham, suggested that universities should only be subject
to the Act in terms of management functions, like the BBC and
the division between its journalism and broadcasting and management
sectors.[380] Other
submissions from universities suggested that the university sector
should be taken out of the jurisdiction of the Act altogether.
We explore these issues in the following Chapter.

The Act and the Animal (Scientific
Procedures) Act 1986

216. Understanding Animal Research noted that
testing on animals for the purposes of medical research into disease
and injury was:

[...] controversial and while most of the public
are supportive, it can provoke strong feelings among those who
oppose it. Most of those opposed to animal research engage in
passionate debate and sometimes employ radical propaganda, but
campaign within the law. However, a small minority of radical
animal rights extremists are prepared to use intimidation or outright
violence to further their cause. This has ranged from threats
to arson attacks and letter bombs.[381]

217. Section 24 of the Animal (Scientific Procedures)
Act 1986 (ASPA) makes the disclosure of details of licences involving
animal testing a criminal offence punishable by up to two years
in jail. Section 44 of the Freedom of Information Act exempts
information from disclosure when there is a statutory bar preventing
it. Understanding Animal research noted that under European law
disclosure of information "should not violate proprietary
rights or expose confidential information" and "published
details should not breach the anonymity of the users".[382]
The relationship between the two was explored by the Upper Tribunal
following an application to Newcastle University by the British
Union for the Abolition of Vivisection (BUAV) for information
contained in project licences for primate research.[383]
It should be emphasised in this context that both the Upper Tribunal
and Newcastle University agreed that BUAV campaigned peacefully
and were not connected with any group which advocated violence.[384]

218. The Upper Tribunal held that "section
24 of ASPA was not a statutory bar to disclosure" but that
some information could be redacted from the copies of the licences
disclosed under section 38 (where disclosure would endanger the
mental or physical health or safety of University staff and students)
and 43 (the commercial exemption). Newcastle University did not
appeal and redacted information was passed to BUAV. The University
described the case to us as a "legal 'Catch 22' situation"
and added that "it is deeply regrettable that conflicts in
legislation are left to such test cases to resolve."[385]
Dr Rodney Eastwood told us:

[...] the Home Office declined to prosecute [the
University of Newcastle] for doing so, but, on the basis that
if any future case came up it would have to be directed by a tribunal
to find in favour of the university, the universities are now
in the position that, in order to follow the case, they may have
to undergo expenditure of a substantial amount in legal fees to
go through the tribunal process each time in order to prove to
the Home Office that the information was properly released. The
conflict between the two is quite difficult to resolve.[386]

219. David Thomas, Legal Consultant for BUAV,
agreed that there was "partial" conflict between the
Animal Scientific Procedures Act and the Act but identified it
as being within the Home Office:

The Court of Appeal in a BUAV case interpreted section
24 in a way that effectively said that researchers, in terms of
what they gave to the Home Office, had a veto over what the Home
Office could subsequently disclose. The Home Office was then taking
it a stage furtherwe think quite wronglyby saying
that under section 24 it cannot disclose even information that
it has generated itselffor example, action that it has
taken following breaches of licence conditions. It says that it
cannot even tell Parliament what action it takes. There is a real
problem as far as the Home Office is concerned. That is why the
BUAV and many others believe that section 24 should go and leave
things to the exemptions under the FOI Act to strike the balance
that needs to be struck between accountability and transparency
on the one hand and legitimate concerns on the other.[387]

220. Dr Nick Palmer, Director of Policy for BUAV,
told us that "the new European Union directive on animal
experiments is recognised by the Home Office to be incompatible
with section 24 as it stands."[388]
On 17 May 2012, Lynne Featherstone MP, Parliamentary Under Secretary
of State for Equalities and Criminal Information, told the House
of Commons:

We also propose to retain the current requirement
that individuals carrying out regulated procedures on animals
must hold a personal licence authorising them to do so. We will,
however, explore the opportunities to simplify the detail of personal
licence authorities and to remove current requirements which increase
regulation without adding to the effectiveness of the licensing
process. We will ensure any changes avoid detrimental impacts
on levels of compliance or animal welfare and protection.[389]

221. As section 24 of the Animal
(Scientific Procedures) Act 1986 remains under review by the Home
Office following changes in European law we make no recommendation
as to how the Government should act but will consider the outcome
of the review when it is received. It should not be necessary
to amend the Freedom of Information Act to meet the concerns of
universities in this area.

222. We strongly urge universities
to use to the full the protection that exists for the health and
safety of researchers in section 38 of the Act, and expect that
the Information Commissioner will recognise legitimate concerns.
No institution should be deterred from carrying out properly regulated
and monitored research as the result of threats; this was not
Parliament's intention in passing the Act and we are happy to
reiterate that that remains the position.